Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1887-02-11

Grounds upon which he Bases his Last
Guess"
The foli"win. is the opinion of Judge
George Turner i'll the case ui jeff J. liar-
ian, Plaintiff in error, rs. Territory of
Washington, Defendant in error, decided
! February 3, 1887:
\ question arises in this case which was
before The court at its July term 1884
namely. the question Nhtthcr married
, women, nvlng with their husbands. are
."npcIcut grand juror, i'll this territory
The question WAS then decided in the
affirmative, but hv divided court Roscn-
cranz rs. the Territory; W.T.. Rep, 2G;)
Since that decision there has been a
change in the membership of the court
and ii majority oi the quorum sitting In
this case finds itself unable to agree with
he views expressed or the conclusions
announced in the tiist decision.
| Two members of the court, however
yet adhere Ia that decision. This circum
stance gives ground for hesitation i'm over
ruling the same bat there are several rea-
sons which the present majority think
justify them in giving effect to their views
and which will be likely TO prevent en-
|
ministration Cf the law.
l. We think the first opinion reached did
not meet with :he concurrence of the bar
of the territory. 1t established no rule of
| property and its principles have not been
long applied.
| :. a new question, not argued or passed
on i'll the first case, arises in this case and
i1 decisive of it,
Both OF the judges who adhere TO
the first opinion, after a service of long
duration, III which they have honorablv
illumlned our Judicial history by great
learning and ability, and by the purity of
thelr lives and the uprigltness Of their
olllcIal conduct, are about to retire from
Office by reason OF the expiration of their
| terms. 1t Is proper for me to add here
that the membership of the court may he
still further changed in the near future.
and, speaking of myself alone. without
such great detrimcnt to the public inter
| est.
| pass then, without further preliminary
remarks, 10 consideration of the reason,
which, III my Judgment, properly govern
the question.
shall not rcitcratc the arguments en-
braccd in the dissenting opinion read by
me in tie first case. Although presented
most lmperfectly. by reason of the haste
IN which that opinion was prepared, the
views there expressed yet seem conclusive
to my mind against the opinion thcn
reached by the majority of the court;
There are, however some additional
thoughts pertinent tc the reasoning of the
majority in the first case to which | will
advert hcforc going on with the new qucs
ton involved. Section 3,O1S of the code
provides that "all qualified electors shall
be competent 20 serve as petit jurors and
all qualified electors and hOuSeh oldrrs
shall Nc competent to serve as grand
Jurors"
Al the session of 1854, the legislature
then passed an au act entitled IAN act TO
amend section 3,O50, chapter o3S of the
code of Washington territory" which act
if valid, makes tcmales of like age with
males, qualified electors. The claim is
that females are competent jurors by rca.
son OF these two statutes. From the earliest
period in the history of the common law.
jurors, grand and petit, have been com
posed of men. The language Of the re4ire
taci0s was that they he liter tkqalfs homo.
and according To Blackstone under the
word hono, though a name common to
both sexes, the female, however, is cx-
cludcd, propter dttrtum serus."
When legislatures have prescribed the
qualification of jurors the requirement
that they should he males has always been
implied. Section 2,05S of the code carries
with it that implication, and undoubtedly
that which is implied would have been
cicarl, EXPRESSED If IL ha,i ever occurred
to the members that Il subsequent leui~la-
ture would confer the elective franchise on
females. Whatever may he thought of the
rI,bt. f,f
Is but one opinion among the great mass
Of the people, male and female, concern
ing the imposition on the latter uf Jury
duty. and that opinion is firmly and uli-
alterably against such imposition. The
legislature which passed the suffrage act,
coming from the people and representing
their sentiments, can not be supposed to
have intended the accomplishment of that
which the people so universally disap-
prove. and II Is fair I" suppose that they
would have expressly limited the effect of
their act if they had fOrsecn the lengths
TO which it would be attempted TO carry
it.
However this may be, the later act dealt
entirely with the elective franchise, and
as have heretofore shown, il could not
lawfully have had in contemplation any
other object.
Neither OF the legislatures then, re>pon
Siblc Tor the respective acts, the joint Op-
Grafton of which is held to make females
jurors, having contemplated such thing
it is manifest that that result can be
arrived at only by a process of judicial
construction which severely follows the
letter of the law and sacrifices the spirit.
Thus that is made to DC law which was
never in the mind of any except the most
visionary enthusiast
Well may it be exclaimed in the face ot
such judicial exposition, "ihe letter kill
eth but the spirit siveth life"
The body of our law NAV be likencd Ia
an ocean, both because of its extent and
lis characteristics. Every atom is in lux
deposition with its ncighbor. the whole
pliable and yielding and yet torceiul, and
notwithstanding its immense force, sub
jcct 10 influence and modification by the
slightest addition. Every addition which
may be made TO the mass forces back the
several paY,s with which it comes in con
tact as far as il may and ought, while the
whole confines the part to its Just and
proper limits. No law can be considered
alone and by itself, Every law carries
with it implicitly, in spite of its terms
limitations and extensions which the
great mass of the law forces on 10 it ane
into it. These limitations are infinite ano
as extensive rs the law itself. An illu>lra
J tion in point is the rule of the com
mon law that a child under sever
years of age is incapable of AL,
crime. Mr. Bishop the most phlo,ophi
cal ot al! our law writers, Tins speaks %
the Limitation just mentioned There
2 fore, when Statute creates crime, II:
! terms, however general, are no Gor' ap
plic.i t. such child than are similal
terms of the cominUn law. And this sur'
OF Interpretation extend, through al nul
laws, the written and Tie unwrilten alike
The books contain cases in which coun
sci and The courts forgot il; bHt none II
which judicial persons with their eye
open aud duly warned, deliberately f'jec
it. We sometimes read in judicial opin
tons that those pronouncing them dcen
il due to the legislature to follow its dlrcc
: ions, and not TO make exceptions where
it has made none; but this sort Of ian